Sunday, August 2, 2009

I am sucking wind just now, searching for inspiration. My wife and I took a lot of time off this summer, and now we are back. After about six weeks off during the past ten weeks, I am looking down the long barrel of a tough trial schedule stretching well into 2010. My clients are scared, and feeling neglected. My staff is dispirited and feeling rudderless. The firm's coffers are empty. It feels like a whole lot more than I can handle. But is this not the life I have chosen?

It is my custom to work Sundays. A quiet office day begins the week. No one else is here; the phone is, for the most part, silent. I can read neglected mail. Study briefs. Do a little writing. In the silence of a long Sunday I can summon courage for the week to come.

But today courage is in short supply. Where to turn?

I picked up a copy of Felix Frankfurter's brief analysis of the Sacco and Vanzetti case, expecting to linger for a chapter or two, and then to press on to other things. Instead, I was gripped by the work's simple elegance. I moved through its 120 pages as if in a trance, bewitched and angered by a tale of the law's abandonment of reason and justice's sacrifice to prejudice.

The Case of Sacco and Vanzetti: A Critical Analysis for Lawyers and Laymen, was first published by Little, Brown, and Company in 1927. My copy is a reprint done in 2003 by a small house, William S. Hein & Co. I was gripped in part for personal reasons.

On April 15, 1920, two men were shot to death in Braintree, Massachusetts. The men were carrying the cash payroll of a shoe factory called Slater and Morrill. Theives made of with almost $16,000. Sacco and Vanzetti were ultimately arrested, convicted and executed for these crimes. They were almost certainly innocent.

"Those crimes were committed by desperadoes -- men whose profession it was to take life if necessary and who freely used guns to hold bystanders at bay in order to make their `get-away,'" Frankfurter wrote. Those words cut me to the bone.

My father was a professional armed robber. He was born about the time of the Braintree murders, and snuck into the country with his father from Crete during the depression. During the 1940s and 1950s he lived by the barrel of a gun, planning and executing armed robberies throughout the Midwest and Northeast. In 1954, he shot a man in Detroit, and needed to flee the city as law enforcement was hot on his heels. He left town for Chicago, taking with him a much younger girl with whom he was in love. They became my parents the next year. He tried to make a go of the workaday world with us, but left far too soon to suit me in an effort to return to what he called "the life."

Forty or so years passed before I saw him again. I last saw him when he was buried in Williamsburg, Virginia, surrounded by a family most of whom did not even know I existed. A dapperly dressed man from my father's past man spoke at the funeral; I did not have the nerve to ask him about my father. I was almost afraid of what I would learn; I also feared that the vanilla quality of my life would not measure up to the tastes of this elegant stranger.

Was my father a desperado? I suppose he was. He fled the responsibilities of parenthood as if I were a heist gone wrong. My father would have let Sacco and Vanzetti die for his crimes. Yet I am drawn to defending his side of life's line. Perhaps it is genetic; or perhaps its an acquired taste for the darkness at life's margins.

From time to time we prosecute innocent men merely because prejudice permits it. My father was lucky. Guilty of many crimes, he never faced trial; indeed, he was crafty enough never to be charged. (When I showed him around the state in which I now live, he asked about a clock factory in one town. "How'd you know about that place?" I asked. He winced.) And even when the facts suggest factual guilt, the presumption of innocence requires a defense.

I confess to never having read much about the Sacco and Vanzetti trial. I was aware of the controversy surrounding it. Two left-leaning Italian immigrants prosecuted on flimsy evidence and convicted amid prejudice and the hysteria of the Palmer Red Scare. That's the textbook answer, acquired on the fly. But until reading Frankfurter's expose, I was unaware of the venality of the trial judge, Webster Thayer. Frankfurter describes a post-trial decision of Judge Thayer by calling it "a farrago of misquotations, misrepresentations, suppressions and mutilations" -- I've seen a few of those sorts of decisions. And I was unaware of just how badly consciousness of guilt evidence was used at the trial. Or to what extent prosecutorial misconduct contributed to the conviction: appeals to passion and prejudice were common, evidence was hidden from view, and justice scorned.

Frankfurter's book has not restored the fighting frame of mind I'll need to confront the morrow. But I commend this short read to trial lawyers in need of quick inspiration. We do fight for justice. Our clients depend on us in conflicts that transform their lives for better or worse. And, in the end, we stand alone sometimes defiant to the end and insisting that even the most scorned among us are entitled to all that the law, our passion, our intellect and our heart can provide. And when these higher sources of inspiration run dry, there's always the simple truth that every defendant is someone's father, mother, sister, brother. My father may have been a desperado, but for all that I still had too few chances to call him Dad.